On Appeal From the United States District Court For the District of New Jersey. (D.C. Criminal Action Nos. 92-cr-00347-1; -2; -3; -4).

Before: Hutchinson, Roth and Rosenn, Circuit Judges.

Author: Roth

Opinion OF THE COURT

ROTH, Circuit Judge :

We are confronted in this case with a tension between two issues of critical constitutional concern: the need to protect the confidentiality of jurors' deliberations while, at the same time, guaranteeing the right of the press and the public to have access to court proceedings. We conclude that under the circumstances presented here, the district court improperly sealed the transcript of the jury voir dire and then upon unsealing it, placed certain improper restrictions on the use of the juror-identifying information. We will, therefore, reverse the order of the district court sealing the record, and we will reverse in part and affirm in part the restrictions imposed by the district court on the conduct of juror interviews.

This appeal arises from several high-profile criminal prosecutions for securities fraud, RICO conspiracy, mail fraud, and related charges. Appellants, the Associated Press, the New Jersey Press Association, and the Newark Morning Ledger Company (collectively, "the press"), challenge the actions of the district court first in sealing the transcript of the jury voir dire at the end of the trial and, later, in releasing the transcript with restrictions placed upon its use. The restrictions apply to anyone coming into possession of juror-identifying information from the transcript; they circumscribe the substance and extent of any questioning of the former Antar jurors.

We find that the sealing of the transcript was accomplished prematurely. It was done without adequate notice, without a hearing, and without factual findings being placed on the record. We further find that the restrictions imposed on the use of juror information at the time of the unsealing were not supported by an actual or potential threat either of juror harassment or of invasion of the deliberative process as it was taking place.

We do not minimize the importance of confidential jury deliberations or of the need to protect former jurors from harassment. Nor do we intend to suggest that the restrictions which we find to have been improperly imposed here may not be permissible in some future case. In order to restrict the right of access, however, a court must carefully articulate specific and tangible, rather than vague and indeterminate, threats to the values which the court finds override the right of access.

There are, of course, instances when the jurors' identities should be concealed in order to protect against tampering or coercion or threats. See, e.g., In re Globe Newspaper Co., 920 F.2d 88, 97 (1st Cir. 1990). Moreover, harassment of jurors by the press after the completion of a trial may adversely affect the willingness of citizens to freely participate in the jury system. This court has not yet, however, faced the question of restricting access to court proceedings or to transcripts of those proceedings in order to protect the jurors' from post-trial contact with the press.

Under the circumstances presented in this case, we conclude that the precedent of Press Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) ("Press-Enterprise I "), is directly controlling. We hold, therefore, that the presumptive right of access applied to the voir dire proceedings as they were recorded in the trial transcript.*fn1 Applying the requirement that detailed findings of the need for restrictions be made before any restriction is imposed, we find that the court's initial order, sealing the transcript, violated procedural and substantive aspects of the press's right of access to the voir dire transcript.*fn2 The subsequent release of the transcript was not a cure for this violation of access. Moreover, certain of the restrictions placed upon the use of the information in the transcript, contained in the court's second order unsealing the transcript, were too broad in view of the lack of any specific recorded findings of actual or imminent threat of juror harassment.

I.

A. The Trial and the Sealing of the Transcript

The six week trial in this criminal action began on June 1, 1993. The defendants, founders of a well-known consumer electronics chain, Crazy Eddie's, were accused of various corrupt business practices, including a scheme of securities fraud.

Because of pre-trial publicity, the district court requested a large pool of potential jurors. As a result, on the first day of trial, there were not enough seats in the courtroom. Before starting the voir dire examination of the potential jurors, the court asked that members of the press leave the courtroom in order to free up additional seats. This appears to have been a request rather than an order. The press voluntarily complied. The voir dire continued for two additional days. During that period, the members of the petit jury stated their names and hometowns on the record. Although the voir dire was an "open" proceeding, in that the courtroom was not closed to non-participants, the absence of the members of the press at the court's request prevented them from learning the identities of the Antar jurors.

The press was present during the remainder of the trial. Toward the end of the trial, on the day that summations were given and the jury retired, Richard P. O'Leary, counsel for the Associated Press ("AP"), sent a letter to the court, requesting the names and addresses of the jurors. Joint Appendix ("App.") at 203-04. O'Leary sent the letter because the AP hoped to interview the jurors after the verdict. The combination of the press's absence from the voir dire and the fact that the record of the proceedings had not yet been transcribed left the press in a curious position. Though the names of the jurors were public information and anyone present during the voir dire might know their identities, the press did not. In his letter, O'Leary noted the news organization's interest in speaking to members of the jury after the Conclusion of the trial. He attempted to ease any concerns the court might have had about potential contacts with the jurors prior to the Conclusion of deliberations by stating: "As an officer of the court, I represent that I would not disclose this information to the AP until after the verdict has been returned." Id.

The court's response to O'Leary's request was to immediately seal the transcript of the voir dire proceedings and other portions of the public record containing juror identifying information. This was done sua sponte: no hearing was held and no findings were made.*fn3

B. The Post-Sealing Hearings

Four days later, on July 20, 1993, the jury returned its verdicts, convicting Eddie Antar and Mitchell Antar of multiple counts of securities fraud. The AP then moved to intervene in order to obtain the release of the jurors' names and addresses. In the meantime, the district court had not dismissed the jury because of a pending civil forfeiture action against the Antars. However, on August 2, two days before the jury was to reassemble, the government moved to dismiss the forfeiture action. The court granted the dismissal and agreed that it would discharge the jurors by telephone, rather than requiring them to return to the courthouse. Because the jurors were not physically present, the press were unable to approach them at the Conclusion of their jury service.

At the same time, the court raised the issue of the AP's motion to intervene. Counsel for the AP reiterated the press's interest in obtaining the jurors' names and addresses so that they could be interviewed. The district Judge responded:

I'm very interested in that issue. I'm a bit baffled by it, to be perfectly frank with you, because everything we do in this system of Justice is designed to protect the secrecy of the jury proceedings.

App. at 106.

The AP countered by arguing that the First Amendment established a right of access to jury voir dire proceedings. In keeping with its concerns, the court replied that it would require the press to rebut a presumption that communications with jurors may be limited in order to ensure free and confidential jury deliberations in the future.

We got a collision. We got some First Amendment collision with that rule [Fed. R. Evid. 606(b)].*fn4 We got a collision with the whole jury system here. I mean . . . you folks are going to have the laboring oar here. I'll tell you that. I'll give you a hearing, obviously. You have a laboring oar with me to show me . . . what, if any, prevailing news gathering or First Amendment arguments are sufficient to overcome the very sacred nature of a jury's deliberations.

It would seem to me--I'm just talking flat out. What are you going to ask the jury? How did you vote? What did your fellow jurors think? What evidence impressed you?

These are all things which fall squarely within the proscriptions of that rule. I can't call them to testify as to that.

App. at 107.

The Judge then voiced his reluctance to release the identities of the jurors because of his concern about the growing trend of jurors in high-profile cases to discuss their deliberations post-trial. He expressed his concern in stating:

All of a sudden, the minute they finish their job, you send them outside and the press can go asking them about their feelings about the case? How did you vote in the case?

This sensationalism has got to stop some place. We have to get back to our system of Justice. . . . There is something radically wrong if we're trying cases in the press.

App. at 110.

The district Judge's focus on Rule 606(b) is evident from his comments. The Judge indicated that this rule helps to promote secrecy, which, in turn, promotes the health of the deliberative process. He emphasized his belief that the limitations of Rule 606 apply equally to press interviews as they do to investigations into the validity of a verdict: "I'm stuck on question number one, which is what can you ask a juror which . . . does not fly in the face of what 606(b) talks about?" App. at 113.

While the above concerns applied to the continued sealing of the transcripts, the Judge also explained why he believed the initial closure order to have been necessary:

I sealed it all [the transcript and court documents containing juror-identifying information] because I wasn't going to have my ruling subverted, hopefully. I sealed everything.

The purpose of my gag order was very simple. It was to get back to the very basic and fundamental issue of having a jury not affected by any outside influences, including the outside-of-the-court statements made by counsel for the government or for the defense.

I've accomplished my purpose. Absolutely.

App. at 124.

In concluding, the Judge explained that he would be calling the jurors later that day to discharge them and that he would "strongly suggest, in view of their duties, that they not discuss the matter with the press at least insofar as their deliberations are concerned." App. at 117. The Judge cautioned the press that they should not contact the jurors pending a final decision, even if they were to come across the jurors' identities through legitimate means. "I would recommend that they await this Court's ruling. . . . If they want to take me on, be my guest. . . . It might be considered inappropriate to go ahead and try to do some investigative work on the jury in the interim before you have intervened in the proceeding." App. at 119-120. At the end of the hearing, the Judge scheduled argument for August 23 on the questions of intervention and of the release of the jurors' identities. The argument date was subsequently postponed to October 18.

The Newark Morning Ledger Company and the New Jersey Press Association then joined the AP in the motion to intervene.*fn5 After full briefing of the issues, at the October 18, 1993, hearing, the district Judge permitted the interventions. He also reiterated his concerns about protecting the jury deliberation process:

You're talking about invading the jury room. . . . You're going to ask them what the deliberations were about, what was important, what was unimportant, who voted for what, was there a split on this.

That is what you gentlemen are espousing. You gentlemen are espousing opening that door and letting the public know everything that goes on in the deliberative process under the guise of the First Amendment. Not for the purpose of . . . doing some analytical study of the juror, but to sell a newspaper, ...

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